The controversy over Virginia “Ginni” Thomas, Clarence Thomas and the Jan. 6 insurrection is demonstrating one profound difference between Democrats and Republicans: how they view the value of making a stink.
People in Washington have long known that Ginni Thomas is unique among spouses of Supreme Court justices: She’s a professional conservative activist who is influential in Republican administrations and works directly on issues before the court. With the release of her text messages with Mark Meadows leading up to Jan. 6, 2021, her far-right extremism has become impossible to ignore: along with urging Trump’s chief of staff to help overturn the election, she trafficked in QAnon-type conspiracy theories.
Given his wife’s role in encouraging the effort to overturn the election that culminated in the awful events of that day, Clarence Thomas should obviously recuse himself from any case having to do with Jan. 6. But what can Democrats do about him?
The way Democrats are answering that question tells us a lot about their party.
This Friday, 17 progressive organizations are releasing a letter calling on Democrats to launch a congressional investigation of Justice Thomas’s "misconduct in his handling of cases regarding the January 6 insurrection, the 2020 presidential election, and other cases involving his wife’s political activities.”
As the groups note in their letter, which is spearheaded by Take Back the Court, Supreme Court justices are bound by a federal statute that says they, like other judges, should recuse themselves from any case in which their “impartiality might reasonably be questioned.”
Thomas has already violated this law, the letter argues, by ruling on multiple cases involving both the 2020 election and the insurrection.
In addition, in the past, Thomas has failed to properly disclose his wife’s income from political groups (he later amended his disclosures after the omissions were revealed), and she reportedly works with groups that have business before her husband.
What might a congressional investigation accomplish? The letter argues that it might determine “whether Justice Thomas’ conduct was consistent with basic principles of judicial ethics, whether he violated federal law and his oath to 'impartially discharge and perform his judicial duties, and what actions must be taken in response.”
But so far, Democrats have largely been restrained in response to the Ginni Thomas revelations. While a few more liberal lawmakers, including Rep. Alexandria Ocasio-Cortez (D-N.Y.) have said Clarence Thomas should resign or be impeached, Democratic leaders have not.
Senate Majority Leader Charles E. Schumer (D-N.Y.) and others have called only for Thomas to recuse himself in future cases involving Jan. 6. Asked whether Thomas should be impeached, House Speaker Nancy Pelosi (D-Calif.) said, “I don’t think he should ever have been appointed,” which is essentially a dodge.
This is not how you create a scandal, if that’s what you wanted to do.
Perhaps liberal activists, progressive members of Congress and the Democratic base can create enough pressure that the Democratic leaders will feel compelled to start an investigation. But there’s immediate resistance to that idea.
Why? In part this resistance is grounded in a recognition of a cold reality: Thomas will probably stay on the court until the day he dies (or at least thereabouts), doing pretty much as he likes, and there isn’t much Democrats can do about it.
Remember the idea that justices are bound by the law demanding their recusal in cases in which their impartiality could be questioned? That’s not exactly true, because there’s no body or agency with authority over the Supreme Court to force compliance with the rules. Justices decide for themselves whether they should recuse in any given case. Clarence Thomas just won’t, because he almost never recuses himself, and the very fact that Democrats are demanding it makes it less likely that he will.
Which Democrats know. They also know it’s unlikely that an investigation would result in an impeachment, let alone a conviction. Many Democrats probably think that, ethically speaking, Thomas isn’t quite guilty of a felony, and so impeachment might not be warranted; you’d need Republicans to convict him, which would absolutely never happen.
Those practical considerations will stay most Democrats’ hands. But when Republicans are in this kind of position, they don’t care whether the practical goals of such an effort will come to pass. For them, raising a stink is an end in itself.
Republicans raise stinks as part of a never-ending effort to create controversy, chaos and scandal around Democrats. Should we mount the fifth, sixth, seventh congressional investigation of Benghazi? Of course! Let’s just keep yelling!
It’s not that Democrats never gin up a manufactured controversy about Republican misdeeds. But they’re just not as eager to do it as Republicans are. Democrats are usually on the lookout for reasons not to, especially when they’re in power and want to spend time on governing priorities.
Indeed, in something of an ironic twist, Republicans’ own contempt for norms, ethics, rules, and the very processes of our system has a kind of demoralizing effect on Democrats, making them less likely to go after figures such as Thomas. He doesn’t care about his ethical obligations and won’t recuse himself no matter how loudly we demand it, some Democrats will say, so what’s the point?
That’s not a question Republicans would ask if they were in the same situation. But Democrats do ask it of themselves. Which sends a message to Republicans that the rules don’t really apply to them, and they can act with impunity. Clarence Thomas has surely taken note.
In a concurring opinion to Friday’s Supreme Court ruling overturning Roe v. Wade, Justice Clarence Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” The rulings Thomas referred to guarantee the right to contraception, same-sex relationships and same-sex marriages.
But those substantive due process precedents also include (Loving v. Virginia), the Supreme Court’s 1967 decision that says that laws banning interracial marriage violate the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution. And Justice Clarence Thomas, a Black man, is married to Virginia "Ginni" Thomas, who is white.
Unlike Thomas, the other justices, both conservative and liberal, contended with what Friday’s decision could mean for cases that include (Loving), and seven mentioned (Loving) by name.
But the only African American on the Supreme Court, and the only Supreme Court justice in an interracial marriage, doesn’t mention (Loving) at all. Though Thomas argues that all those other precedents should be reconsidered, he implies by his silence that the one that affects him personally is sacrosanct.
He doesn’t acknowledge that his decision and the decision of his conservative colleagues could theoretically give his own state of Virginia, which had to be forced by a Supreme Court ruling to permit interracial marriages, another shot at banning them.
I’m not the only one who believes (Loving) seems intentionally left out.
Attorney Gloria J. Browne-Marshall, author of “She Took Justice: The Black Woman, Law, and Power – 1619 to 1969,” told me Friday, “Clarence Thomas is in an interracial relationship that would not be supported under the legal theory he espoused today.” Not mentioning (Loving), Browne-Marshall said, “makes him a hypocrite. … The word 'marriage' is not in the Constitution. If he believes in states’ rights, he’d also believe in states’ right to say a Black man cannot marry a white woman.”
The other conservative justices, all of who are white and married to other white people of the opposite sex, apparently found it necessary to describe, either explicitly or implicitly, (Loving v. Virginia) as a decision they believed was safe.
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” Justice Samuel Alito wrote in the majority opinion. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” Alito argued that abortion was different because it dealt with “potential life.”
In his concurring opinion, Justice Brett Kavanaugh mentions (Loving) by name: “First is the question of how this decision will affect other precedents involving issues such as contraception and marriage —in particular, the decisions in (Griswold v. Connecticut), 381 U. S. 479 (1965); (Eisenstadt v. Baird), 405 U. S. 438 (1972); (Loving v. Virginia), 388 U. S. 1 (1967); and (Obergefell v. Hodges), 576 U. S. 644 (2015),” he wrote. “I emphasize what the Court today states: Overruling Roe does not mean the over- ruling of those precedents and does not threaten or cast doubt on those precedents.”
But the three liberal justices, retiring Justice Stephen Breyer, and Justices Sonia Sotomayor and Elena Kagan, argue that Friday's decision does indeed cast such doubt.
“The law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things,” they wrote. “It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in (Loving) to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. … So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too — whatever the particular state interests involved.”
The Supreme Court's conservative majority, who said those precedents were safe, has got to know that future justices won’t be bound to anything this court decides, just as this court didn’t let itself be bound by the decision of the court that decided Roe v. Wade. All it would take to end (Loving) are five like-minded Supreme Court justices.
True, banning interracial marriage wouldn’t be a popular move. According to the Pew Research Center, in 2015, 17 percent of newlyweds and about 10 percent of married people overall “had a spouse of a different race or ethnicity,” and according to Gallup, 94 percent of adults are approving of marriages between Black people and white people.
Then again, polling has nothing to do with Supreme Court decisions. After all, according to Pew, 61 percent of U.S. adults say abortion should be legal in all or most cases, and the court just overturned Roe.
Conservative lawmakers have already said out loud that they’re thinking about (Loving). Sen. Mike Braun, R-Ind., answered yes this year when asked, “So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?” But then his office backtracked and said the senator didn’t mean what he’d said.
Thomas seems to know what a quandary his own theories put him in. In his dissent in the Obergefell ruling, he called comparisons between gay marriage, which he’d overturn, and interracial marriage “offensive and inaccurate,” saying marriage between a man and a woman has a history that gay marriage does not. Entire papers have been written about which way Thomas would rule on (Loving), and quite a few people have pointed out if he really believes in originalism — the theory that the text of the Constitution should be interpreted according to the original meaning of the words used — he’d also have to believe that (Loving) was incorrectly decided and that states have the power to ban his own marriage.
Even if he doesn't want it to be so, Thomas' argument Friday is an argument that, if accepted in whole, would hurt Black people. But Thomas has made a career of swimming against the stream when it comes to laws that help Black people. He lives in his own rigid conservative bubble.
The question remains, though, whether he’ll have the courage to stand on the opinion he published Friday if racists challenge the Supreme Court ruling that made it impossible for states to block his marriage to his wife.
the blatant hypocrisy Thomas has shown recently is absolutely mind-blowing...
(a)Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b)He shall also disqualify himself in the following circumstances:
(1)Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2)Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3)Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4)He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5)He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i)Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii)Is acting as a lawyer in the proceeding;
(iii)Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv)Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c)A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d)For the purposes of this section the following words or phrases shall have the meaning indicated:
(1)“proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2)the degree of relationship is calculated according to the civil law system;
(3)“fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4)“financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i)Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii)An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii)The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv)Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e)No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f)Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
the blatant hypocrisy Thomas has shown recently is absolutely mind-blowing...
What can Democrats do about Clarence Thomas?
So your argument is that a judge can't make any decision that his wife agrees with?